Special Service Bill provides unrestricted right to the government to collect information via supervision and interception of communication of any person or organization. This is dangerous
Article 28 of our constitution guarantees the right to privacy, which is inviolable except according to the law. But reading the draft of Special Service Bill, one gets the impression whether ‘according to the law’ means according to what the government thinks is right. When the constitution included the term ‘according to the law’, essentially it meant according to the existing jurisprudence and rule of law, not according to the rule by law. There is a thin line between this notion and constitutional legitimacy of Special Service Bill.
The right to privacy is the right to be free from surveillance by the government or anyone else. This is why privacy of a person is inviolable under all circumstances. Where surveillance is authorized, it should only occur if absolutely necessary and only with authorization by an independent judicial officer. Till now this is the norm in Nepal. The government only has the right to tap a citizen’s personal conversation with a proper judicial order. This has kept Nepali citizens’ privacy safe till now and has given the confidence that one’s data is not being tapped by the government. However, this dynamic is challenged, threatened and may possibly become a reality if the Special Service Bill is passed in its current form.
Section 10 of the Bill provides unrestricted right to the government to collect information via supervision and interception of communication of any person or organization under suspicion or supervision for the purpose of ‘gathering information or taking up spy activities’. This is dangerous given the provisions of Section 5 of the Bill whereby the Department (under the Act) has the jurisdiction over a wide range of activities including protection of VIP and VVIP, any social activities that the government wants to get information about, activities against another state, political rebellion groups, activities against the welfare of the state and so on. Reading these two provisions constructively, it is evident that the government can easily target any person in the name of suspicion or collection of information. In fact, it seems that the government has a hidden interest to use this law against political opponents or any other groups who might be suspected of carrying out acts against certain countries or foreign organizations which might be suspected of carrying out foreign agenda in Nepal, given that mere suspicion suffices for someone’s personal communication to be intercepted and the person/organization being supervised.
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Curtailing privacy
Though privacy can be curtailed under certain circumstances, this doesn’t mean the government can violate it without valid grounds. Another dangerous flaw of the Bill is its lack of provision on handling and destruction of the information collected by the Department. There is no doubt that personal information can only be collected and kept by the state and anyone else for a legitimate purpose authorized by law. Where such information is legally and reasonably collected, such information should be destroyed as soon as it is no longer required. Not only would this aspect of right to privacy protect privacy, it would also improve security. If personal information is only collected when absolutely necessary and destroyed once not needed, it is less likely to fall into the wrong hands. Nevertheless, the Special Service Bill lacks provisions on destruction of the data. That means personal data once collected remain in the hands of bureaucrats ‘forever’.
Every individual has the right to remain anonymous unless the authorities have reasonable grounds to believe that the person has committed a crime.
Examples elsewhere
In 2007, the US court declared some provisions of Patriot Act 2001 unconstitutional on the ground that the Act allowed issuance of search warrants without showing probable cause. The court held that the Foreign Intelligence Surveillance Act, as amended by the Patriot Act, “permitted the executive branch of government to conduct surveillance and searches of American citizens without satisfying the probable cause.” When the USA Freedom Act was enacted in 2015, it stopped the National Security Agency (NSA) from continuing its mass phone data collection program. Instead, phone companies were allowed to retain the data and the NSA was allowed to obtain information about targeted/specific individuals with permission from a federal court.
Thus while American history has proven that indiscriminate and unreasonable collection of information through tapping of communication devices violates an individual’s rights, Nepal should not follow this doomed path and take a step behind in democracy.
In India, collection of personal data for Aadhar card caused a huge outcry for the breach of privacy. The Supreme Court of India held that “right to privacy is protected as an intrinsic part of the right to life and personal liberty under the Constitution”. Where privacy is not explicitly mentioned as a fundamental right in the Indian Constitution, this jurisprudence shows the importance of privacy and forbade the government to collect information at its will. In Nepal, this is not even the case as privacy is unequivocally and explicitly guaranteed as a fundamental right. Section 69(1) of the Information Technology Act and the Rules authorized the Indian government to collect information but there are grounds under which the government can authorize some agencies to collect such information. This means that no agency or department in India has unlimited power to collect information from people but such power comes from the government within the grounds set by the law. The Special Service Bill does not even have this protective provision and in fact provides unlimited, unrestricted and unchecked right to one Department of the government.
The government seems to be guided by the motive of making Nepal a surveillance state. With the unlimited power to collect information and the absence of provisions requiring destruction of information, privacy will remain at the mercy of bureaucrats. This serves nothing but accumulation of power in the hands of bureaucrats paving the way for abuse of power. This is a great threat to democracy for which Nepali people have fought so hard. With this approach, Nepal might walk into the path of becoming a police state with bureaucrats having access to personal information of virtually every citizen. It is unfortunate that Nepal is on the path of enacting such a law which will be far more detrimental to personal liberty.
That said, government needs some safety and surveillance measures for certain legitimate purposes. But such surveillance power cannot and should not be unlimitedly vested on bureaucracy. Changed circumstances demand new laws but such laws cannot infringe upon the fundamental human rights guaranteed to all human beings. Members of parliament should think on behalf of the people and make sure that the Bill is passed only with necessary amendments.
The authors are registered attorneys at law
